First One @ One First: Justice Stevens’ Valedictory Question

Mike Sacks is guest-blogging at ABAJournal.com during his unique U.S. Supreme Court project, First One @ One First, which is to be first in line for politically salient arguments at the high court this term.

Today marked Justice John Paul Stevens’ final oral argument of his nearly 35-year career as an associate justice of the U.S. Supreme Court. Although Stevens has two more months of opinion announcements to get in a few more words as an active justice, his sole question during this morning’s argument in Doe v. Reed might as well have been his valedictory address to the court and the country.

For nearly 30 minutes, Justice Stevens listened to the petitioners’ lawyer, Jim Bopp, argue that men and women who signed a petition to place an anti-gay rights referendum on the state ballot had a First Amendment right to privacy in their political associations that protected them against harassment from those with opposing political views. Accordingly, Bopp maintained, Washington state had no compelling justification to release, pursuant to the state’s Public Records Act, the signers’ names and information.

Then, as the white warning light turned on upon Bopp’s lectern to signal that his half-hour was almost up, Justice Stevens leaned forward and spoke into his microphone:

Would it be legitimate public interest to say, I would like to know who signed the petition, because I would like to try to persuade them that their views should be modified? Is there public interest in encouraging debate on the underlying issue?

When Bopp called such an interest “marginal,” Stevens continued:

Well, [public disclosure] does identify people who have a particular point of view on a public issue. And if you have the other point of view, don’t you have an interest in finding out who you would like to convince to change their minds?

With that one line of questioning, taking up no more than a minute in the hour-long argument, Justice Stevens politely condemned the culture wars’ hardened partisanship that has poisoned the country’s political and legal climate in the decades following his confirmation to the court in 1975.

By casting aside Justice Stevens’ suggestion of a state interest in civil discourse as marginal, Bopp, a longtime culture warrior-at-law, truly represented this morning the bunkered-in political class blinded by its own passionate opposition to the same social movements that carried Stevens in the other direction. Indeed, Doe v. Reed has been animated from the start by a distorted siege mentality that comes from the epistemic closure so rampant among those who see their ways of life under attack.

Bopp offers an exemplary illustration of such distortion in the very first paragraph in his merits brief’s argument, in which he cited The Ku Klux Cases for the proposition that the federal government shall not countenance violence in the electoral process. Taken for the legal proposition alone, this assertion is hardly offensive. But to sustain this analogy, Bopp whitewashed the factual disparity between The Ku Klux Cases and Doe: he fails to note that the former involved Klansmen who “beat, bruised, wounded, and otherwise maltreated” a black citizen by “going in disguise and assaulting him on the public highway and on his own premises.” The Klan’s analogous antagonists in Doe, according to Bopp? Unknown gay rights activists who send threatening e-mails with poor grammar and a blogger who asked that if a public figure associated with the referendum drive “can do ‘legal’ things that harm OUR family, why can’t we go to Arlington, WA[,] to harm his family?”

So fundamentally disparate was the leading analogy in Bopp’s argument that many in today’s audience thought that Justice Clarence Thomas might speak for the first time in four years to express the same outrage that motivated his 2002 outburst inVirginia v. Black over one of the advocate’s understating the sui generis malevolence of the Klan’s burning cross in American history.

Justice Thomas, of course, did not ask a question today. Moreover, given his lone dissent in Citizens United on potential harassment grounds over the court’s upholding mandatory disclosure rules, Thomas may even look past Bopp’s egregious merits brief to be convinced, as Justices Stephen Breyer and Samuel Alito seemed to be today, that there is enough of a threat of harassment against the petition-signers to merit an injunction against making their information public.

But back to Stevens’ questions. His implicit plea for a return to a more reasonable political climate also served to admonish those who would utilize Washington’s Public Records Act in bad faith. This may prove Justice Stevens to be just as out of touch with today’s reality as he suggests the petitioners are in believing the plight of traditional marriage supporters in the Pacific Northwest is equal to that of freedmen in the post-Reconstruction South. Nevertheless, not all delusions are created equal: Justice Stevens’ idealistic hope for a healthy, respectful debate must win over petitioners’ fearful view of the world as a Thunderdome in which two cultures enter and only one leaves.

Then again, if the petitioners want to stay in the Thunderdome, Justice Antonin Scalia is all too happy to let them have it. Forget Stevens’ vision of a civic regime of neighborly persuasion: Scalia asks, “what about just wanting to know [the petition-signers’] names so you can criticize them? … Part of the reason [for disclosure] is so you can be out there and be responsible for the positions you have taken.”

This attitude, after all, has motivated Scalia year after year to employ an acid pen as his weapon of choice in jurisprudential fights to the death with Justice Stevens.

Problem is, Scalia’s vision requires a worthy nemesis of a distinctly different style to make it work. Otherwise, one gets as an opponent nothing more than an exposed bully who starts whining that the fight isn’t fair and then runs away crying when he is really just over matched. Let’s go to the tape:

Bopp: Well, then why don’t they require both sides?

Justice Scalia: So that people—people can criticize you for the position you have taken.

Bopp: Then why don’t they require both sides if that was the purpose?

Justice Scalia: What do you mean, “both sides”? The other side hasn’t signed anything.

Bopp: The other side—(Laughter.)

Justice Scalia: When they sign something, they will be out there for public criticism as well.

Bopp: OK. But this is a one-way street.

Justice Scalia: Oh, this is such a touchy-feely, oh, so sensitive about—about any—(Laughter.) You know, you can’t run a democracy this way, with everybody being afraid of having his political positions known.

Bopp: I’m sorry, Justice Scalia, but the campaign manager of this initiative had his family sleep in his living room because of the threats. [Ed. note: Bopp, quite agitated, shouted the final few words at Justice Scalia.]

Justice Scalia: Well, that’s bad. The threats should be moved against vigorously, but just because there can be criminal activity doesn’t mean that you—you have to eliminate a procedure that is otherwise perfectly reasonable.

Bopp: But all we are asking for is a First Amendment analysis of the compelled disclosure of the identity of these people and whether or not these interests are sufficient. May I reserve the balance of my time?

Stevens knows as well as Scalia that sometimes one does just have to get down into the footnotes and fight dirty to get your way. But this has never stopped Stevens from wishing for the return of that the moderate court he knew in 1975, and the country it reflected that sought to heal a decade of social turmoil.

Today, Scalia may have gotten the knockout punch, but he responded to Stevens’ setup. In doing so, Scalia proved Stevens’ point: when traditional adversaries begin to listen to each other, they bring out the best in each other—sometimes even achieving shared goals despite radically different approaches.

The country will sorely miss Justice Stevens’ influence on the court as its master cooperator and combatant. May his presence live on and his vision succeed in years to come.

Mike Sacks is a third-year law student at Georgetown University Law Center interested in legal journalism and the intersection of law and politics. Contact him at
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